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{{DISPLAYTITLE:''Women's Property Rights in Wythe's time''}}
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{{DISPLAYTITLE:''An Introduction to ''Wythe's Reports}}
 
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Going through Wythe's Chancery Court's decisions, a reader might notice that whenever a woman is a party in a case, she is almost always represented in her capacity as a party by a man, often the woman's husband. This comes from women's unfortunate legal position in Wythe's day.
 
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==Virginia law in the early 18th century==
 
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Virginian law in the early 18th century was a mixed bag for women. The English common law rule of ''coverture'' meant that married women were forbidden could only sue in court through their husband's name and that contracts wives agreed to before and during the marriage were void.<ref>"coverture", ''Black's Law Dictionary'', Bryan A. Garner, ed. (St. Paul, MN: Thomson Reuters, 10th ed., 2014): 446; Davis Thomas Konig, "Regionalism in Early American Law," in ''The Cambridge History of Law in America: Volume I: Early America (1580-1815)'', edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008): 172.</ref> Virginia, however, would often use courts of equity to help married women and widows keep control of what they owned.<ref>Konig, 172.</ref> Virginia women could also take advantage of the common-law rule of ''dower'', which gave a widow the right to one-third of her late husband's estate and some of his belongings for the rest of the widow's life. The rule of dower also said that husbands could not sell any real estate the couple owned while they were married unless the wife approved. A magistrate would speak privately with the wife to make sure that the husband wasn't forcing the wife to agree. Married women in Virginia during this time could also take advantage of the English law of ''separate estates''. Under this rule, the wife's land and belongings were held in trust for her and reserved for her use.<ref>Konig, 173.</ref>
 
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==Wythe's era and Blackstone's rule of marital unity==
 
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By the late 18th century, though, women lost many of the protections under the common law they had before. Virginia followed the rule Blackstone set down in his Commentaries: an even stricter implementation of the idea of "unity of person between the husband and wife ; it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband."<ref>William Blackstone and St. George Tucker, ''Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia'' 3 (Philadelphia: William Young Birch and Abraham Small, 1803): 432.</ref> The wife still had the right of dower in real estate she brought into the marriage, so her husband was only entitled to the profits made off of that land. Any personal property the wife brought to the marriage, however, was free to be disposed of as the husband desired.<ref>Ibid.</ref> The option for a separate estate for the wife's belongings and land was no more.<ref>Holly Brewer, "The Transformation of Domestic Law," in ''The Cambridge History of Law in America: Volume I: Early America (1580-1815)'', edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008): 317-318.</ref> 
 
  
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If a wife wished to file suit in court, or it someone wanted to sue her, it would still have to be done through her husband's name.<ref>Blackstone and Tucker, 2: 443.</ref> Blackstone's rule of a "union of person in husband and wife" likely led to some cases filed in the name of the wife that ran against the wife's true interest - say, by a husband trying to add to the "marital" (read his) property by suing to get rid of an inconvenient restriction.<ref>Edmund Pendleton thought that such trickery was afoot in the case of ''[[Fowler v. Saunders]]''.</ref>
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Some of the United States' Founders are better-known than others. Washington and Jefferson are always present in the popular mind. Before Lin-Manuel Miranda's musical, asking the average modern American about Alexander Hamilton would likely get a mumbled reply about the ten-dollar bill. One of the more obscure Founders is George Wythe. Today, if anyone encounters Wythe, it is usually as a supporting character in other Founders' stories: mentor, teacher, and friend to Jefferson; or committee chair calling for Virginia to ratify the U.S. Constitution.
  
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Blackstone thought that his strict rule of marital unity was for the benefit of women, saying that "(s)o great a favourite is the female sex of the laws of England."<ref>Blackstone and Tucker, 2: 445.</ref> [[St. George Tucker]] was not convinced. In his commentaries on Blackstone, Tucker said that "(n)othing, I apprehend, would more conciliate the good will of the student in favour of the laws of England, than a persuasion that they had shewn a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve."<ref>Blackstone and Tucker, 2: 445, fn. *.</ref>
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But Wythe played an important role in the United States's early days. William & Mary's -- and the United States' -- first law professor, he was a man of great integrity who greatly influenced some of the fledgling country's most important figures with jurisprudential ideas that were often ahead of their time. Why do Americans not know more about this teacher, judge, delegate to the Second Continental Congress, and signer of the Declaration of Independence? One reason may be a lack of documentation. Thomas Jefferson said he had often seen Wythe toss the documents he created while working on a case into the fire upon the case's conclusion.<ref>Kirtland, 5-6.</ref> The notes Wythe made as William & Mary's Professor of Law and Police scattered to places unknown long ago.<ref>For more information on the fate of Wythe's personal papers, see the Wythepedia article [[Wythe's Lost Papers]].</ref>
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We do, however, have the collection of decisions he handed while sitting on the bench of Virginia's High Court of Chancery.  Wythe compiled a book of these cases, now known as ''Wythe's Reports''.<ref>George Wythe, ''[[Wythe's Reports|Decisions of Cases in Virginia by the High Court of Chancery]]'' (Richmond: Printed by Thomas Nicolson, 1795).</ref> Several decades after Wythe died, [http://en.wikipedia.org/wiki/Benjamin_Blake_Minor Benjamin Blake Minor] edited a second edition of the ''Reports'' that added some more decisions Wythe intended to be published.<ref>George Wythe, ''[[Wythe's Reports|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions|Decisions of Cases in Virginia by the High Court of Chancery]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852).</ref>
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The ''Reports'' contain cases that Wythe heard as Virginia's High Chancellor, the judge who sat on the commonwealth's High Court of Chancery, a court of equity. In the Anglo-American legal system, equity developed as an alternative set of remedies to the common law system; equity was supposed to provide a soultion when the common law outcome would not provide proper justice. In the early days of the United States, many states had separate courts to hear equity cases. Equity cases usually involved property, contract, and inheritance disputes, so those are the cases the reader will find in ''Wythe's Reports''. Wythepedia has created pages for each of the decisions in the ''Reports'' summarizing the case and its background and explaining references to sources Wythe cited. We can think of ''Wythe's Reports'' as his version of a casebook, the textbooks that modern law students are familiar with. Wythe excerpts and summarizes the court's decisions, sometimes including subsequent appeals to other courts, then comments on them. Wythe hopes that by reading his commentaries on the courts' decisions, future lawyers and students of law will reach a better understanding of the law as it was in Virginia and how he thought it ''should'' be.  
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Wythe's ''Reports'' demands a lot from its readers. Wythe frequently cited or alluded to Ancient Greek and Latin works (often in their original language, with no English translation), as well as more recent classic authors such as Cervantes, Dante, and Shakespeare. He frequently used shorthand references and terms of art that lawyers of his era would understand, but which 21st-century readers may find baffling. Wythe frequently left out information such as how the case arrived before him or facts that Wythe found irrelevant to the point he was trying to make. Often, if a Wythe decision was appealed to the Virginia Supreme Court of Appeals, that higher court's opinion would be a better source for the facts of the case.
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Properly understanding Wythe's decisions also means knowing their historical context. Many of the cases Wythe decided were influenced by events that were familiar to educated people in his day, but are esoteric history to modern Americans. Wythe also believed that Roman law principles were sometimes superior to English legal precedent, and cautioned against blindly following England's caselaw. Wythe believed, as did many of his contemporaries, that as a new country, the United States might wish to follow European-style civil law principles rather than Anglo common law.<ref>Timothy G. Kearley, "From Rome to the Restatement", ''Law Library Journal'' 108(1) (Winter 2016): 60.</ref>
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Another important piece of subtext lurking within ''Wythe's Reports'' is its author's long rivalry with [[Edmund Pendleton]], President of the Virginia Supreme Court of Appeals. Wythe had arguably the most brilliant jurisprudential mind of his generation, and he was rarely defeated when he argued a case. The gregarious Pendleton, however, was a master litigator and one of the few people capable of defeating Wythe in court. As President of the Supreme Court, Pendleton reversed a substantial number of Wythe's decisions.
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Wythepedia articles on the cases in ''Wythe's Reports'' summarize the case, and include notes and links to useful articles that can better explain the conflict and reasoning in the case. Wythepedia also includes articles that fill in the background behind a number of these decisions. ''Wythe's Reports'' can be a treatise on Virginia law and equity, a snapshot of life in Virginia during the late 18th century, and a profile of one of this nation's most underappreciated Founders. We hope you find our case summaries useful.
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==References==
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<references/>
  
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Equity courts, however, made efforts to give women separate property rights they had under the common law before Blackstone's doctrine took hold.<ref>Brewer, 317-18.</ref> As the chancellor for Virginia's High Court of Chancery, Wythe followed in this tradition, doing what he could to protect women's property rights against ill-intentioned guardians and husbands.<ref>See ''[[Shermer v. Richardson]]'' for an example.</ref> Wythe's high opinion of civil law traditions may have also played a part. As Blackstone noted, under the civil law followed by many European nations, "the husband and the wife are considered as two distinct persons ; and may have separate estates, contracts, debts, and injuries".<ref>Blackstone and Tucker, 2: 444.</ref>
 
 
==References==
 
==References==
 
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Latest revision as of 15:31, 26 May 2017


Some of the United States' Founders are better-known than others. Washington and Jefferson are always present in the popular mind. Before Lin-Manuel Miranda's musical, asking the average modern American about Alexander Hamilton would likely get a mumbled reply about the ten-dollar bill. One of the more obscure Founders is George Wythe. Today, if anyone encounters Wythe, it is usually as a supporting character in other Founders' stories: mentor, teacher, and friend to Jefferson; or committee chair calling for Virginia to ratify the U.S. Constitution.

But Wythe played an important role in the United States's early days. William & Mary's -- and the United States' -- first law professor, he was a man of great integrity who greatly influenced some of the fledgling country's most important figures with jurisprudential ideas that were often ahead of their time. Why do Americans not know more about this teacher, judge, delegate to the Second Continental Congress, and signer of the Declaration of Independence? One reason may be a lack of documentation. Thomas Jefferson said he had often seen Wythe toss the documents he created while working on a case into the fire upon the case's conclusion.[1] The notes Wythe made as William & Mary's Professor of Law and Police scattered to places unknown long ago.[2]

We do, however, have the collection of decisions he handed while sitting on the bench of Virginia's High Court of Chancery. Wythe compiled a book of these cases, now known as Wythe's Reports.[3] Several decades after Wythe died, Benjamin Blake Minor edited a second edition of the Reports that added some more decisions Wythe intended to be published.[4]

The Reports contain cases that Wythe heard as Virginia's High Chancellor, the judge who sat on the commonwealth's High Court of Chancery, a court of equity. In the Anglo-American legal system, equity developed as an alternative set of remedies to the common law system; equity was supposed to provide a soultion when the common law outcome would not provide proper justice. In the early days of the United States, many states had separate courts to hear equity cases. Equity cases usually involved property, contract, and inheritance disputes, so those are the cases the reader will find in Wythe's Reports. Wythepedia has created pages for each of the decisions in the Reports summarizing the case and its background and explaining references to sources Wythe cited. We can think of Wythe's Reports as his version of a casebook, the textbooks that modern law students are familiar with. Wythe excerpts and summarizes the court's decisions, sometimes including subsequent appeals to other courts, then comments on them. Wythe hopes that by reading his commentaries on the courts' decisions, future lawyers and students of law will reach a better understanding of the law as it was in Virginia and how he thought it should be.

Wythe's Reports demands a lot from its readers. Wythe frequently cited or alluded to Ancient Greek and Latin works (often in their original language, with no English translation), as well as more recent classic authors such as Cervantes, Dante, and Shakespeare. He frequently used shorthand references and terms of art that lawyers of his era would understand, but which 21st-century readers may find baffling. Wythe frequently left out information such as how the case arrived before him or facts that Wythe found irrelevant to the point he was trying to make. Often, if a Wythe decision was appealed to the Virginia Supreme Court of Appeals, that higher court's opinion would be a better source for the facts of the case.

Properly understanding Wythe's decisions also means knowing their historical context. Many of the cases Wythe decided were influenced by events that were familiar to educated people in his day, but are esoteric history to modern Americans. Wythe also believed that Roman law principles were sometimes superior to English legal precedent, and cautioned against blindly following England's caselaw. Wythe believed, as did many of his contemporaries, that as a new country, the United States might wish to follow European-style civil law principles rather than Anglo common law.[5]

Another important piece of subtext lurking within Wythe's Reports is its author's long rivalry with Edmund Pendleton, President of the Virginia Supreme Court of Appeals. Wythe had arguably the most brilliant jurisprudential mind of his generation, and he was rarely defeated when he argued a case. The gregarious Pendleton, however, was a master litigator and one of the few people capable of defeating Wythe in court. As President of the Supreme Court, Pendleton reversed a substantial number of Wythe's decisions.

Wythepedia articles on the cases in Wythe's Reports summarize the case, and include notes and links to useful articles that can better explain the conflict and reasoning in the case. Wythepedia also includes articles that fill in the background behind a number of these decisions. Wythe's Reports can be a treatise on Virginia law and equity, a snapshot of life in Virginia during the late 18th century, and a profile of one of this nation's most underappreciated Founders. We hope you find our case summaries useful.

References

  1. ↑ Kirtland, 5-6.
  2. ↑ For more information on the fate of Wythe's personal papers, see the Wythepedia article Wythe's Lost Papers.
  3. ↑ George Wythe, Decisions of Cases in Virginia by the High Court of Chancery (Richmond: Printed by Thomas Nicolson, 1795).
  4. ↑ George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions|Decisions of Cases in Virginia by the High Court of Chancery, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852).
  5. ↑ Timothy G. Kearley, "From Rome to the Restatement", Law Library Journal 108(1) (Winter 2016): 60.

References

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